Citation Nr: 1123708
Decision Date: 06/22/11 Archive Date: 06/28/11
DOCKET NO. 10-37 305 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUES
1. Entitlement to service connection for a low back disorder.
2. Entitlement to service connection for a bilateral hand disorder.
REPRESENTATION
Appellant represented by: Kentucky Department of Veterans Affairs
ATTORNEY FOR THE BOARD
M. J. In, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 2005 to May 2009.
This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO).
The appeal is remanded to the RO via the Appeals Management Center in Washington, DC.
REMAND
The Veteran is seeking entitlement to service connection for low back and bilateral hand disorders. Based upon its review of the Veteran's claims file, the Board finds there is a further duty to assist the Veteran with his claims herein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010).
In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83.
Initially, the Board recognizes that there is a heightened obligation to assist the claimant in developing a claim as part of the Veteran's service treatment records are not available in this case. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Ussery v. Brown, 8 Vet. App. 64 (1995). The available service treatment records are silent for any treatments for or diagnoses of any low back or hand condition.
However, shortly after his separation from service in May 2009, the Veteran reported low back pain and right wrist pain in a June 2009 VA treatment report. In addition, on an August 2009 VA examination conducted in conjunction with claims not related to those on appeal, the Veteran reported a history of low back and bilateral hand conditions since 2007. The August 2009 VA examination reported diagnoses of Dequervain's tenosynovitis of the bilateral hands and recurrent lumbar strain and spasm.
The Veteran contends that the onset of his low back and bilateral hand pain was in Iraq while serving as an ammunition technician. His Form DD 214 confirms his inservice specialty as an Ammunition Technician. The Veteran reports that his inservice duty required a lot of bending and lifting heavy weights and that he noted increasing bilateral hand pain while picking up and carrying boxes in Iraq. In various written submissions, the Veteran stated that he experienced weakness in the grip strength of his hands after handling ammunition repetitively in service. He also stated that he was treated for both his low back and hand conditions in service and continued to experience the same low back and bilateral hand pain ever since his service.
In summary, here, the evidence consists of medical reports that include current diagnoses of low back and bilateral hand disorders and lay statements demonstrating the presence of relevant lay-observable symptoms during the Veteran's active duty service, but does not contain an etiological opinion relating the currently diagnosed low back and bilateral hand disorders to the Veteran's active duty service. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (lay person may provide eyewitness account of medical symptoms). As such, the Board finds that while an inservice diagnosis of a low back or bilateral hand disorder has not been shown, the low threshold described in McLendon has been reached and a medical opinion is required to determine the etiology of the Veteran's current low back and bilateral hand disorders. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination); see also McLendon, 20 Vet. App. at 83.
Accordingly, the case is remanded for the following actions:
1. The RO must request that the Veteran identify all VA and non-VA medical providers who have treated him for his low back and/or bilateral hand disorder(s) since his discharge from the service. The RO must then obtain copies of the related medical records that are not already in the claims folder. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond.
2. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the etiology of his current low back disorder. The claims file must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following examination of the Veteran, a review of his pertinent medical history, and his statements regarding observable symptomatology, the examiner must provide an opinion as to whether the Veteran's current low back disorder was caused or aggravated by the Veteran's military service, to include as due to extensive bending and lifting heavy weights while in service. In rendering this opinion, the examiner must elicit information from the Veteran regarding his military service, such as the type and extent of duties performed as an ammunition technician. A complete rationale for all opinions must be provided. If any requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report prepared must be typed.
3. The Veteran must also be afforded an appropriate VA examination to determine the etiology of his current bilateral hand disorder. The claims file must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following examination of the Veteran, a review of his pertinent medical history, and his statements regarding observable symptomatology, the examiner must provide an opinion as to whether the Veteran's current hand disorder was caused or aggravated by the Veteran's military service, to include as due to repetitive handling of ammunition while in service. In rendering this opinion, the examiner must elicit information from the Veteran regarding his military service, such as the type and extent of duties performed as an ammunition technician. A complete rationale for all opinions must be provided. If any requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report prepared must be typed.
4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination(s) and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.
5. The examination report(s) must be reviewed to ensure that it is in complete compliance with the directives of this remand. If any report is deficient in any manner, the RO must implement corrective procedures.
6. After completing the above actions, the RO must readjudicate the Veteran's claims, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review.
No action is required by the Veteran until he receives further notice; however, he may submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).